Mohammad Rafi v. Prescribed Authority Munsif City — 1987 DIGILAW 1123 (ALL)

JUDGMENT K. P. Singh, J. 1. This is a tenant's writ petition against the judgment and order passed by the Prescribed Authority, Saharanpur, on 12-8-1985 in Case No. 29 of 1985 Mohammad Rafi v. Meharban whereby the petitioner's application under section 28 of the V. P. Act No. 13 of 1972 has been rejected. 2. The petitioner had approached the Prescribed Authority on the allegations that he was a tenant of the shop at the rent of Rs. 10/- per month and that the roof of the shop was not water-proof and it needed major repairs for which the petitioner had given notice to the landlord and had requested the landlord for effecting necessary repairs and his request has not been paid heed to, therefore, the application under section 28 of the U. P. Act No. 13 of 1972. The landlord had refuted the allegations made in the petitioner's application and had asserted that the roof needed reconstruction and was not repairable. The cost of reconstruction would be more than Rs. 1000/-, therefore, the claim of the petitioner that the roof needed only major repairs was wholly incorrect and that the petitioner's application for major repairs was not maintainable. It had also been alleged that the plaintiff petitioner had wrongly estimated the cost of the alleged major repairs to the tune of Rs. 200/- only. Since the alleged repairs needed more than 2 years' rent, therefore, the prescribed authority had no jurisdiction to grant the application made by the petitioner. According to the landlord the application under section 28 of the U. P. Act No. 13 of 1972 could be granted only if the alleged major repairs needed cost less than two years' rent. 3. The prescribed authority through its order dated 12-8-1985 rejected the petitioner's claim as is evident from Annexure I attached with the writ petition. 4. Aggrieved by the order of the Prescribed Authority the petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioner has urged before me that the Prescribed Authority had patently erred in rejecting the petitioner's application on the ground that the expenditure involved in effecting the alleged major repairs would be more than two years' rent payable by the petitioner. The learned counsel for the petitioner has urged before me that the Prescribed Authority had patently erred in rejecting the petitioner's application on the ground that the expenditure involved in effecting the alleged major repairs would be more than two years' rent payable by the petitioner. It had been emphasised before me that the Prescribed Authority should have directed the landlord for effecting major repairs as the roof of the petitioner's shop was not water-proof. The limitation of two years' rent was with a view that the tenant petitioner could not claim more than two years' rent from the landlord in case the tenant effects the major repairs. 5. The learned counsel for the contesting opposite parties has tried to support the impugned judgment. According to him the roof was in a dilapidated condition and needed reconstruction rather than the alleged major repairs, therefore, the Prescribed Authority was fully justified in rejecting the petitioner's application on the finding recorded by it that the roof needed reconstruction and not only major repairs. 6. Second submission made on behalf of the opposite party is to the effect that in view of the provisions of section 28 (5) of Act No. 13 of 1972, the Prescribed Authority could not order for carrying out major repairs if the cost of the major-repairs would be more than the amount of two years' rent. According to the learned counsel the cost of the alleged major repairs was more than Rs. 1000/-, i.e. much more than two years' rent payable by the petitioner, therefore, the petitioner's application was rightly rejected. Section 26 (2) of U. P. Act No. 13 of 1972 requires the landlord to keep the building under tenancy wind-proof and water-proof and to carry out periodical white-washing and repairs, section 28 of the aforesaid Act reads as below :- "28. Enforcement of landlord's obligation regarding repairs etc.-(1) If the landlord fails to carry out whitewashing or repairs as required by sub-section (2) of section 26, the tenant may, by notice in writing call upon him to carry out the same within one month from the date of service of such notice. Enforcement of landlord's obligation regarding repairs etc.-(1) If the landlord fails to carry out whitewashing or repairs as required by sub-section (2) of section 26, the tenant may, by notice in writing call upon him to carry out the same within one month from the date of service of such notice. (2) Where the cost of the requisite white-washing or repairs is likely to exceed the amount of two months' rent in a year, then the tenant in his notice shall also intimate to the landlord his willingness to pay enhanced rent in accordance with the provisions of section 6, (3) If the landlord fails to comply with the notice, the tenant may himself carry out the white-washing or repairs at a cost not exceeding two months' rent in a year and deduct the amount from the rent and in any such case he shall furnish the account of the expenditure incurred to the landlord. (4) Where the tenant claims that the building requires white-washing or repairs to such extent that the cost thereof is likely to exceed the amount of two months' rent in a year, hereinafter in this section referred to as "major repairs", and the landlord either declines his responsibility to carry out the same or fails to comply with the notice, the tenant may apply to the Prescribed Authority for an order under sub-section (5), (5) The Prescribed Authority on receiving an application under subsection (4) may, after giving an opportunity of hearing to the parties :- (a) either reject the application; or (b) require the landlord to carry out the requisite major repairs within such period as may be specified in the order, and on his failure to do so, permit the tenant to carry out those repairs at a cost not exceeding such amount which shall not be more than the amount of two years' rent and within such period as may be specified in the order." (6) ........................... (7) ........................... 7. In the present case the above-mentioned provisions of section 28 (5) of the Act need consideration in the light of the arguments advanced by the counsel for the parties. (7) ........................... 7. In the present case the above-mentioned provisions of section 28 (5) of the Act need consideration in the light of the arguments advanced by the counsel for the parties. The learned counsel for the petitioner has urged that a bare reading of Clause 5 (b) of section 28 of the above-mentioned Act does not indicate that if the cost of major repairs would be more than two years' rent, the application would not be maintainable, therefore, the impugned judgment and order of the Prescribed Authority should be quashed. True, that bare reading of the aforesaid provision does not categorically indicate that if the cost of major repairs would be more than two years' rent the tenant's prayer for direction to the landlord for effecting major repairs would be refused but if the Prescribed Authority has taken that view it cannot be said that the authority has patently erred in taking that view. The implied meaning of the aforesaid provision of sub-section (5) (b) of section 28 of the Act would be that the Prescribed Authority should not require the landlord to carry out the requisite major repairs if it needed the amount exceeding more than two years' rent. In Kailash Nath Verma v. 4th Additional District and Sessions Judge, Kanpur, 1984 (2) ARC 34, a learned Single Judge of this Court has indicated vide paragraph 31 of his judgment as below :- "...............Under sub-section (5) when an application is made by a tenant asking for an order regarding major repairs the Prescribed Authority may require the landlord to carry out the major repairs and on his failure to do so may permit the tenant to carry out those repairs. The financial limit for such repairs is that cost should not exceed the amount of two months' rent." ("months" appears to have been wrongly written in place of "years"). 8. I think that the contention of the learned counsel for the petitioner is not correct that the Prescribed Authority could not refuse the petitioner's application on the ground that the alleged repairs required more than two years' rent as cost. 8. I think that the contention of the learned counsel for the petitioner is not correct that the Prescribed Authority could not refuse the petitioner's application on the ground that the alleged repairs required more than two years' rent as cost. It is note-worthy that the Prescribed Authority has rejected the petitioner's application under section 28 of U. P. Act No. 13 of 1972 on the following finding : ".........Vivadit Dukan ki chhat marammat yogya nahi hai balki uska punarnirman karaya jana avashyak hai aur punarnirman ki izajat is nyayalaya ke dwara nahi di ja sakti.................." 9. In Parsadi Lal Halwai v. Prescribed Authority, 1983 (2) ARC 434 a learned Single Judge of this Court has indicated vide paragraph 8 as below : "It is obvious that if there is need for reconstruction of building then the petitioner cannot be held entitled to any relief under section 28". 10. In view of the above observation of a learned Single Judge of this Court it is difficult to say that the Prescribed Authority has patently erred in the facts and circumstances of the present case in rejecting the petitioner's application under section 28 of U. P. Act No. 13 of 1972. In the result, both the contentions raised on behalf of the petitioner are devoid of merits and this writ petition deserves dismissal. Accordingly, I dismiss the writ petition and make no order as to costs.